Nand Ram v. Khazan

Mears, C.J:— This is an application in revision against an order of acquittal. Although there is no doubt that the High Court has the power to order a retrial, it is a jurisdiction which should be exercised only in exceptional cases and with caution. It should only be done in cases where the alleged offence is of a serious character. It however a Judge comes to the opinion that there has been a miscarriage of justice, where for instance the lower Court has misquoted the evidence or where having evidence before it which prima facie is reasonable and credible, the Judge of that Court gives no grounds whatever far rejecting it, in instances such as that there may well arise an inference either that the Judge has not acted with that propriety and care which is required in the decision of every case, be it Civil or be it Criminal. In such a case it would appear to be proper after due examination of the facts, to make an order for retrial.

2. On the evening of the 25th of September 1920, one Nand Ram, a zamindar, was riding home. On that evening he was grievously assaulted and as a result of that assault was unconscious for four days.

3. The most important feature in the case is that whilst he was unconscious one Abhey Ram was arrested because he (Abhey Ram) according to the statement of one Harnam, was seen by him to be just behind Nand Ram on the road within a few moments of the assault. Harnam heard the cries of Nand Ram almost immediately after. The evidence of Nand Ram shows that Abbey Ram came up from behind. At the time when Harnam saw Nand Ram on the road and Abbey Ram behind him, be did not know the name of Athey Ram but he knew him to be a resident of an adjacent village. Harnam gave a statement to the police and as a consequence Abbey Ram and his caste fellows of that village paraded before Harnam, who without hesitation picked out Athey Ram as the man whom he had seen on the road. He did this on the 27th of September, at a time when Nand Ram was still unconscious. As a consequence, Abbey Ram was arrested. Two days later, on the 29th, Nand Ram regained consciousness and mentioned his assailants at once as being Khazan and Athey Ram. The learned Sessions Judge does not suggest any reason whatever for disbelieving Nand Ram or Athey Ram. Two chamars say that immediately before the occurrence they saw Khazan, one of the accused, standing quite close to what became afterwards the scene of the occurrence; and another witness Dharma said that he saw both Khazan and Athey Ram returning together to the village at a time which would be after the occurrence. Throughout the whole of his judgment, the learned Sessions Judge gives no reason whatever for discrediting these witnesses. Nothing was said in cross-examination to impugn their veracity; and on a question of alleged enmity between Abhey Ram and Nand Ram though in fact the cause of enmity may have been very slight, nevertheless the learned Judge put the reason for the enmity as something which had happened a “good many years ago.” That was a manifest error because if there was any enmity it had arisen only a short time before. In these circumstances, I am of opinion that this is one of those rare and exceptional cases where a new trial should he ordered. The accused put up as a defence a denial of all knowledge of the crime.

4. Let the matter therefore be retried by the Additional Sessions Judge at Meerut. Although it has been necessary in deciding this case to set out the reasons which influenced me in thinking that there should be a retrial, the learned Additional Sessions Judge must of course exercise the most free and independent judgment in this matter, uncoloured by the fact that the men have once been acquitted, and equally uncoloured by the fact that the High Court has ordered a retrial. It may be that the learned Sessions Judge wholly disbelieved everything which was said on the part of the prosecution and considered none of the witnesses worthy of credit. If so he should have given that as a ground. The reason for a retrial is this, that on an examination of the record as it stands, the evidence of Nand Ram and his witnesses seem to point to the fact that there has been a miscarriage of justice in a serious case and the judgment of the Sessions Judge does not satisfactorily review the evidence.

5. Retrial ordered.